Comment of the Day: “The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price”

The motion to vacate Judge Walker’s ruling on Proposition 8 has been filed, you can read it here. Since the original post, I have detected some cracks in the formerly near-united front of legal ethicists and journalists deriding Walker’s critics. Some of them are finally, grudgingly, admitting that the Judge might not have handled his potential conflict so well after all, and that the motion is not a frivolous, anti-gay outrage as they originally labelled it.  The most rickety of the rationalizations put forth on Walker’s behalf, advanced by some his most respected defenders, is that he had no obligation to reveal his own sexual orientation by disclosing his domestic arrangement because of its intimate and private nature. Yet the judge voluntarily disclosed it after his decision was in the books, raising a rebuttable presumption that his original silence was to avoid suggestions of conflict, not out of a desire for privacy.

First time commenter Jada adds her Comment of the Day to the discussion:

“Judge Walker is not automatically assumed to be biased simply because he is gay.  His bias comes from a possible personal stake he had in the ruling.  It’s as simple as that.  Even if he and his partner of 10 years had no plan to marry, in all likelihood he socialized with other gay people, some of whom may have married in the short time frame it was legal.  Is it so inconceivable that a man who planned to retire in a year might not want to alienate his friends and associates and become a social pariah in a community that he was intimately acquainted with?

“I know how strongly people feel about this issue but a little honesty is in order.  How much faith would the average American have in this judicial ruling were they to become aware that a partnered gay judge from San Francisco struck down a constitutional amendment declaring gay marriage illegal?  A great many Americans already view our political system as corrupt.  So far, the judicial branch still has some standing but something like this would be one more nail in the coffin Americans have in the confidence in our judicial system.   The belief in a fair and impartial judiciary is all that protects us from rampant lawlessness.  Who would feel beholden to obey a law they believed to be derived from overt bias and self-gain? However much some people want gay marriage, is it worth that?”

8 thoughts on “Comment of the Day: “The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price”

  1. The first paragraph is pointless. I am not gay. I do not have a long term same sex relationship. I have also socialized with people who were married in California while it was legal. If I had been Judge Walker, the same argument would have applied to me. Do we keep friends of minorities from hearing cases about affirmative action and minority rights? Do we keep those minorities themselves from hearing such cases?

    While I agree that many people would see this a conflict of interest, I think the minority might see a straight or uninvolved judge of having just as much conflict of interest. How do we balance these varying amounts of conflict? Majority rules? That’s the traditional belief, but is it right, or does it undermine the mission of the judicial branch?

    • I’m surprised that you don’t see the point of the first paragraph (assuming you are talking about my intro paragraph), which is simply that the argument isn’t frivolous or based on bigotry. I have no idea what the courts will say—my guess is that they will maintain the legal fiction that there is no reasonable bias, for overarching societal reasons. I think there is a difference between finding bias based on what someone IS, and what someone’s life situation is….and I find when s judge intentionally refuses to divulge that situation, a presumption of bias is reasonable. Many of my colleagues initially ridiculed that notion…they aren’t so much now.

      • Oops. I understand your point. I was going after the comment itself. I thought that would be clear by what I wrote afterwards.

        I agree that it isn’t necessarily bigotry, and that not divulging the relationship causes a serious conflict. If Walked had let his relationship be known, though, would it be any more a conflict than a straight person? That was the point I was aiming at. Conflicts only seem to occur when the Judge is in the minority.

        If everyone had tight friends in the oil industry, we’d consider it a conflict if a judge overseeing an oil case did not have those tight relationships.

        • I think letting a potential conflict be known argues strongly that a judge is aware of the conflict and intends to make a good faith effort to make sure it doesn’t influence his reasoning. I think hiding it argues the other way, and triggers the appearance of bias problem. I personally think Walker is capable of ruling according to the law without his own situation controlling, but he sure didn’t make it easy for everyone to believe that.

          • We’re in agreement on everything you said.

            I think it’s more interesting to discuss what is and isn’t considered bias when disclosed. It does appear to me that only minority behavior is ever considered bias.

            • You’re right, because I think rights are not seen as a zero sum game, or shouldn’t be. A married heterosexual shouldn’t feel he or she is losing anything by exyending rights to gay couples. I would believe that a black judge ruling on Brown v. Bd. of Education would have a stronger pro Brown bias than a white judge would have an anti-Brown bias…wouldn’t you?
              Or how about an unborn fetus judge, appointed as the first such judge on the Supreme Court, ruling on Roe? I’d say he would be biased. No?

              • A married heterosexual shouldn’t feel he or she is losing anything by exyending rights to gay couples.

                I agree, but many do.

                I would believe that a black judge ruling on Brown v. Bd. of Education would have a stronger pro Brown bias than a white judge would have an anti-Brown bias…wouldn’t you?

                Nope. Let’s break it down to a simplified case: “Are whites better than blacks?” The white judge would have to give up privileged status to say no.

  2. The opposition to the motion for vacatur is here .

    I wonder if you will be filing an amicus brief in support of the motion. If you do, here are some examples that would better illustrate this issue.

    A judge who is a member of Agudath Israel (a conservative Jewish congregation) would indisputably be required to disclose his membership in a case where Agudath Israel was plaintiff. And if Agudath Israel was seeking classwide relief on behalf of its congregants, the judge in that case would be indisputably disqualified, even if the litigants are willing to waive disqualification.

    A judge whose daughter attends a school would indisputably be required to disclose her daughter’s attendance in a sex discrimination lawsuit against that school. And if classwide relief were being sought on behalf of all female students in that school, she would be indisputably disqualified, even if the litigants are willing to waive disqualification.

    And, of course, had this case been transferred to the District of Nevada, a judge in a long-term, same-sex relationship would not be necessarily disqualified under Rule 455(b)(4).

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